Red Bull defeats Gorbatschow with color trademark

Distorted chessboard

In its opposition to Gorbatschow, Red Bull relied on its registered color trademark in a specific design — the well-known pattern on its cans, resembling a kind of distorted chessboard in silver and blue. Red Bull began the case by asserting that this mark enjoys broad recognition across Europe, and it flooded EUIPO with evidence supporting that claim.

 

Most iconic brand

EUIPO was swayed by the impressive sales figures, marketing efforts and awards Red Bull has earned over the years. According to the office, Red Bull is one of the most iconic brands in the world, and this particular silver-and-blue design forms an inseparable part of it. This color trademark, too, carries a strong reputation when it comes to energy drinks.

Broad protection

Legally, that recognition has important consequences. Brands with a strong reputation enjoy much broader protection. With such a well-known mark, you don’t have to prove a risk of confusion — it’s enough if the public simply establishes a link between both the trademarks.

No confusion, but a link

EUIPO found that the overall design of the Gorbatschow brand barely resembles Red Bull’s color trademark. The only similarity is that both use the same color combination, arranged in sharply defined sections. That’s all. No one would confuse the two, EUIPO said. However, the visual similarity — especially due to the colors — will still cause the public to draw a mental link between the two. This effect is amplified by the fame of Red Bull’s mark and the fact that both products are mixed drinks. And as noted: with a famous brand, that association or link alone is enough to constitute trademark infringement. EUIPO concluded that Gorbatschow’s can design was trying to piggyback on Red Bull’s brand reputation — and that’s not allowed.

Years-long battle over color combination trademark

This is a fascinating ruling. It’s worth remembering that Red Bull has been trying for years to establish broad trademark rights over the silver-and-blue color combo for energy drinks. Unfortunately for them, the EU’s highest court, the Court of Justice, rejected this broad claim in 2019. A general trademark on a color combination — regardless of how the colors are arranged — isn’t allowed under EU law.

However, you can get protection for a color combination if your trademark registration clearly shows how the colors are used — the systematic arrangement that connects the colors in a pre-determined and consistent manner. The protection then applies only to that specific arrangement. Red Bull’s distorted silver-and-blue chessboard design meets that criterion.

A claim on the color combo in general?

Still, reading the ruling closely and comparing the significant differences between Red Bull’s color mark and Gorbatschow’s design, it feels like EUIPO has — indirectly — granted Red Bull a kind of general claim over the silver-blue color combo, even without its specific arrangement. That’s obviously great news for Red Bull, but it’ll be interesting to see what the Board of Appeal has to say, should Gorbatschow decide to appeal.

Bas Kist

Image Red Bull Mini: 先従隗始, CC0, via Wikimedia Commons
Image Red Bull HQ Dein Freund der Baum, CC BY-SA 3.0, via Wikimedia Commons
Image Red Bull helmet EKSRX, CC BY 2.0, via Wikimedia Commons

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